The disclosure concerns a data processing system and computer based method for efficiently managing the manner and scope of production of information by litigants and third parties in litigation, for example to meet discovery obligations.
According to the rules of procedure, civil actions are commenced by filing and serving pleadings. Parties to the litigation typically are required to make basic disclosures of information within a stated time after the close of pleadings. A discovery period follows, during which the parties are entitled to serve interrogatories and requests for production of documents on other parties, to demand responses to requests for admission, to notice testimonial depositions with or without an accompanying production of documents and things, to inspect premises, and otherwise to obtain evidence under sworn or similarly credible circumstances. Applicable rules may include, for example, the Federal Rules of Civil Procedure, counterparts of the federal rules that are applicable in state courts, local rules of court for the district or vicinage in which the action is brought, rules applicable to certain causes of action, the preferences of the particular judge, etc.
According to The Sedona Conference Cooperation Proclamation, July 2008, when the first uniform civil procedure rules allowing discovery were adopted in the late 1930's, “discovery” was understood as an essentially cooperative, rule-based, party-driven process, designed to exchange relevant information. The goal was to avoid gamesmanship and surprise at trial. Over time, discovery has evolved into a complicated, lengthy procedure often requiring tremendous expenditure of litigant funds, and substantial legal and judicial resources. Discovery costs can overshadow the value of a matter in dispute. The 2006 amendments to the Federal Rules specifically focused on discovery of “electronically stored information” and emphasized early communication and cooperation in an effort to streamline information exchange, and to avoid costly unproductive disputes.
Discovery rules frequently compel parties to confer regarding data preservation, procedures and forms of document production, and assertions of confidentiality and privilege. Beyond this, parties seeking aid from the court to resolve disputes during discovery, as a prerequisite typically must certify that they have made previous efforts to resolve their difficulties in good faith.
Courts see these rules as a mandate for counsel to act cooperatively. Methods to accomplish this cooperation may include:                Utilizing internal ESI discovery “point persons” to assist counsel in preparing requests and responses;        Exchanging information on relevant data sources, including those not being searched, or scheduling early disclosures on the topic of Electronically Stored Information;        Jointly developing automated search and retrieval methodologies to cull relevant information;        Promoting early identification of form or forms of production;        Developing case-long discovery budgets based on proportionality principles; and        Considering court-appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes.        
Rule 26 of the Federal Rules of Civil Procedure, entitled “General Provisions Governing Discovery; Duty of Disclosure,” generally:                provides for automatic disclosure obligations        defines what is discoverable and what is limited        provides for protective orders        specifies the times at which parties may employ the various methods of discovery        provides for supplementation of responses if new information arises        requires the parties to organize their discovery process in a plan and provides for a meeting to confer on the respective plans, and,        authorizes sanctions against any party that uses discovery to thwart justice, cause undue delay, or harass the other party.        
Nevertheless, there is much room for disagreement. Discovery provides opportunities for parties to engage in abusive tactics. Parties may demand information beyond that needed to verify facts stated in their pleadings. Litigants might properly cast a wide net during discovery to elicit damaging information, or might improperly demand an unnecessary scope or volume of information simply to impose costs and to apply pressure on their opponents. In some cases, responding even to limited discovery requests can be burdensome and expensive for a party required to respond, such as a case where electronic information is involved.
On the side of the party to whom a discovery request is directed, substantial man-hours may be required to review and sift through files and data processing systems in order to find each letter, memo, invoice or other document, database entry, email message, note, calendar entry, and other stored data record, that meets a discovery request. Deliberate or neglectful failure to provide information in the party's possession that is responsive to a request, can lead to sanctions. On the side of the party who receives responsive documents and information, substantial man-hours may be needed to review them. The job is more difficult and time consuming if the form of the product is not in a convenient form.
In order to manage the parties' respective obligations, agreements may be made among the parties, through counsel. Some courts routinely conduct preliminary discussions leading to a scheduling order that sets the scope and timing of some aspects of discovery. The court may require the parties to confer and to submit a proposal or a stipulated (agreed) order as to aspects of discovery. The number of interrogatories permitted, the scope of electronic discovery, the format in which data will be produced and similar details may be involved. The parties may be faced with decisions and compromises. Generally, the court strongly encourages agreement and cooperation. However, there remains a possibility of disputes.
When negotiating an agreement, and also during the discovery process, parties seek to enlarge the discovery obligations of their opponents and to limit their own obligations. During the discovery process, a party may object and decline to respond to an opponent's request on grounds of undue burden, unnecessary disclosure of confidential information, potential attorney-client privileged information or work product. Some of these objections may be resolved by an agreement and stipulated protective order. When parties cannot agree, a party aggrieved by an overly burdensome discovery request can move the court for a protective order. A party promulgating a request who believes its opponent is unreasonably refusing to cooperate can file a motion to compel requesting the court to order their opponent to answer or otherwise comply. But courts are not enthused about discovery disputes. At a minimum, the federal rules and the rules of many states and municipalities require the parties' counsel to meet and to confer, in person if possible, in an attempt to reach an agreement on issues regarding the manner and scope of discovery, as a prerequisite before a motion to compel or a motion for a protective order will be considered by the court.
It is expected that a meet-and-confer will produce a stipulated plan and/or a proposed protective order wherein the parties agree with one another as to the manner and scope of discovery after some give and take in which parties may insist on certain terms that are considered important and concede on others to reach a compromise. But discovery and discovery disputes are subject to gamesmanship and sharp dealing at times. What is needed is a way to bring order, fairness and accountability to this process.